Confidentiality and Transparency - Additional Facility Arbitration (2022 Rules)
The level of confidentiality or transparency in an Additional Facility arbitration depends on the agreement of the parties and any applicable treaty provisions. Absent these, the ICSID Additional Facility Arbitration Rules on transparency will apply in a proceeding. In addition, there are specific rules applicable to the ICSID Secretariat and the Members of a Tribunal.
Provisions in Instrument of Consent
The treaty, contract or law containing the parties’ consent to arbitration may include specific provisions on confidentiality and transparency applicable to the arbitration proceeding. They are usually recited in the Tribunal’s first procedural order.
An example of a treaty provision on confidentiality and transparency is found in Article 10.21 of the United States-Dominican Republic - Central America Free Trade Agreement (CAFTA).
The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (UNCITRAL Rules on Transparency) may apply in an ICSID case by virtue of the State parties to the applicable investment treaty having ratified the Mauritius Convention, or by agreement of the disputing parties in the case. ICSID may also be designated to act as the repository of case documents (see e.g. Procedural Order No. 2 in BSG Resources Limited v. Republic of Guinea (ICSID Case No. ARB/14/22). The UNCITRAL Rules on Transparency contain detailed provisions on publication of case-related information, publication of documents, submissions by a non-disputing party, submissions by a non-disputing Treaty Party, hearings, and exceptions to transparency.
ICSID Additional Facility Rules on Transparency (Additional Facility Arbitration Rule 73)
The Award, any order, decision and final decision in a post-Award remedy proceeding follow the same transparency regime.
ICSID will publish the Award, order, decision and final decision in a post-Award remedy proceeding with any redactions agreed to by the Parties.
If the parties agree on all redactions within 60 days after the issuance of the document, ICSID publishes the document with those redactions.
If the parties do not notify ICSID of any redactions within 60 days after the issuance of the document, ICSID publishes the document without redaction.
If the parties disagree on any redactions within 60 days after the issuance of the document, ICSID refers the disputed redactions to the Tribunal for decision (Additional Facility Arbitration Rule 73(2)). ICSID will publish the Award, order, decision, and final decision in a post-award remedy proceeding in accordance with the decision of the Tribunal (Additional Facility Arbitration Rule 73(2)).
Documents Filed by the Parties (Additional Facility Arbitration Rule 74)
The parties may agree to publish any written submission that they filed in the proceeding, including pleadings, witness statements, expert reports, legal authorities and exhibits.
Even if the parties do not agree on publication of such documents, a party can request that ICSID publish its own written submission (without witness statements, expert reports, legal authorities and exhibits). The other party cannot object to such publication but can request that the document be redacted. If the parties disagree on any redactions, either party may refer disputed redactions to the Tribunal, for decision (Additional Facility Arbitration Rule 74(2)-(3)).
Observation of Hearings (Additional Facility Arbitration Rule 75)
The Tribunal must allow persons other than the participants in the hearing to observe the hearing, unless either party objects.
Public access to hearings could be through web or video broadcasting or in person. ICSID posts an advance notice of hearings open to the public and details about how to obtain access to such hearings.
ICSID can also publish recordings and transcripts of hearings upon the request of a party, if the other party does not object (Additional Facility Arbitration Rule 75(3)).
Confidential and Protected Information (Additional Facility Arbitration Rule 76)
When dealing with disputes concerning redaction of documents, the Tribunal must ensure that confidential and protected information is not disclosed to the public (Additional Facility Arbitration Rules 73(3) and 74(3)). Similarly, the Tribunal must establish procedures to prevent disclosure of such information during open hearings (Additional Facility Arbitration Rule 75(2)). For example, the Tribunal could order suspension of broadcasting during the portion of a hearing dealing with confidential or protected information.
Among other examples, confidential and protected information includes proprietary or privileged information under the applicable law, confidential business information, and protected personal data (Additional Facility Arbitration Rule 76).
The parties are invited to discuss the implications of any applicable laws concerning confidential and protected information at the first session of the Tribunal, which will allow for appropriate protective measures. For example, this could include consideration of data privacy laws such as the General Data Protection Regulation (GDPR).
The parties usually agree on the information and documents that they wish to keep confidential through a confidentiality agreement. The confidentiality agreement is usually signed by the parties and adopted by the Tribunal in an order. The agreement may allow either party to designate documents as confidential, in whole or in part, for use only in the arbitration.
Publication of Case Registers
In addition to Awards, decisions, orders, and documents filed by parties, ICSID publishes information on the registration of requests for arbitration, conciliation and post-Award remedies and maintains registers of all proceedings (Additional Facility Administrative and Financial Regulation 3). The registers are continuously updated under the Procedural Details published for each case on ICSID's website. They include details concerning the method of constitution and composition of each Tribunal, Conciliation Commission, and the procedural steps in the proceedings.
Rules Applicable to Arbitrators
Tribunal members must keep confidential all information obtained as a result of their participation in the proceeding, including the contents of the Award and the deliberations (Additional Facility Arbitration Rule 44(1)). They are required to sign a declaration with this undertaking at the time of their acceptance of appointment. Any Tribunal Assistant is subject to the same duty of confidentiality.